Saturday, January 19, 2008

Purpresture in Hawaii

Thanks to the extraordinary Carl Christensen for calling to my attention what I did not know, but should have:  Hawaii v. Kerr, 16 Haw. 363 (1905), a case about purpresture.  Looks like purpresture may be a piece of aloha jurisprudence.  In this case, a structure encroached on a public beach.  The syllabus to the case states:

The defendant whose lot, as shown by its land commission award, is bounded “along the sea” constructed a concrete wall on the shore in front of his lot between high and low water, a corner of the wall projecting a few feet beyond low water, and was filling the space enclosed by the wall with coral and sand so as to raise the surface above the low water line, with the intention of making a house lot for a seaside residence. Held: Following Gay v. Halstead, 7 Haw. 587 (1889), that the defendant's land extended to and along the line of high water.

The defendant's concrete wall is a purpresture, encroaching upon public territory and rights in the shore. A bill for injunction requiring the removal of the obstruction caused by the wall and enjoining its renewal can be maintained by the Territory under the provisions of section 91 of the Organic Act, giving it the possession, control, maintenance and care of all public property ceded to the United States by the Republic of Hawaii. The bill sufficiently avers irreparable damage.

Time to dust off this doctrine and put it up there alongside spite fences and cemetery access--and, of course, implied trust beneficiaries, as doctrines that protect community rights in property.

Carl writes:

For a look at a modern purpresture case (though it doesn't use the word), also in the beach context, look at Diamond v. State of Hawaii, Board of Land and Natural Resources, 145 P.3d 704 (Hawaii 2006).  Here the unauthorized purpresture is in the form of vegetation artificially induced to grow out onto a publicly owned sandy beach by a shoreline landowner who hopes to gain a more favorable shoreline setback line based on the new vegetation.
In fact, this doctrine is surprisingly vibrant.  Carl continues:

A WestLaw search in the Allstates database on "Purpresture & beach" yields 93 hits, among them Trepanier v. County of Volusia, 965 So.2d 276 (Fla. App. 2007), Lowcountry Open Land Trust v. State, 552 SE.2d 778 (S./C. App. 2001), and Scott v. City of Del Mar, 68 Cal. Rptr. 2d 317 (Cal. App. 1997). 

It seems, one might conclude, that the dern' things pop up all over the place.

Al Brophy
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January 19, 2008 in Recent Cases | Permalink | Comments (1) | TrackBack (0)

Friday, January 18, 2008

Purpresture: What's that?

Kensettbeaconrock I'm working away on "Property and Progress: Antebellum Landscape Art and Property Law" (we've talked about a piece of this before and I'll be blogging more about it in the next few weeks).  I'm interested in the law of beacons in the nineteenth century--they're put up sometimes by the community and at other times by corporations.  And so I'm interested in the law surrounding this public service. 

That's led me to some a word that's new to me (though very old): purpresture.  You ever heard of it before?  I didn't think so.

Here's it in context, in State v. City of Mobile, 5 Port. 279 (Ala. 1837), a case charging that the corporation of Mobile had improperly narrowed a public street:

The obstruction complained of, besides being a nuisance, is also a purpresture. A purpresture signifies “an inclosure;” and is defined to be, where one “by building, inclosing, or unlawfully using any liberty, encroaches upon a highway, public river, &c. of the King, or of another.” ... Judge Story considers a purpresture to be an encroachment upon public property, held by the sovereign for the use of the public, such as highways, rivers, forts, streets and squares.” “Where one takes that to himself, which ought to be common to many.”- [2 Story's Commentaries on Equity, 201, 202.]

We'll be talking some more about this in the near future.

Endnote: The illustration is John Kensett's Beacon Rock, Newport Harbor, from the National Gallery of Art because beacons are what got me started on this little line of inquiry.

Al Brophy
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January 18, 2008 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Thursday, January 17, 2008

Breaking Up a Long Class

A new property prof writes:

My class is an hour and forty minutes twice a week.  While this is good for me (only two times rather than three per week), I know that I need some good ideas for keeping students engaged for that length of time.  I know I can break them into small groups, hand out problems, etc., but I was also thinking about film clips or other sorts of media to break up the standard class.  Do you or any of your colleagues do this?  Any other advice for keeping a long class lively?

I sometimes use small group discussions to break up a long class, but not as much as I could.  Any thoughts?  I'd imagine that Brophy, being a rock star and all, is the master of this kind of thing.

Ben Barros

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January 17, 2008 in Teaching | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 15, 2008

Finding Law in the News

From an AP Story:

A contractor who helped discover bundles of cash totaling $182,000 hidden behind bathroom walls says the homeowner should turn the money over to him — or at least share it.

Bob Kitts said his feud with the owner of the house, a former high school classmate, has deteriorated to the point where they speak to each other only through lawyers.

Kitts said his lawyer has drafted a lawsuit that he hopes will force Amanda Reece to turn over the money she has kept. Meanwhile, Reece accuses Kitts of shaking her down.

Most of the currency, issued in 1927 and 1929, is in good condition, and some of the bills are so rare that one currency appraiser valued the treasure at as much as $500,000, Kitts said.

The fight began in May 2006 when Kitts was gutting Reece's bathroom and found a box below the medicine cabinet that contained $25,200.

"I almost passed out," Kitts recalled. "It was the ultimate contractor fantasy."

He called Reece, who rushed home. Together they found another steel box tied to the end of a wire nailed to a stud. Inside was more than $100,000, Kitts said. Two more boxes were filled with a mix of money and religious memorabilia.

"It was insane," Kitts said. "She was in shock — she was a wreck."

The bundles had "P. Dunne" written on them, probably a reference to Peter Dunne, a businessman who owned the home during the Depression.

Kitts said he took some of the currency for an appraisal and learned that many of the $10 bills were rare 1929-series Cleveland Federal Reserve bank notes, worth about $85 each. There also were $500 bills and one $1,000 bill.

John Chambers, an attorney for Reece, said Kitts rejected his client's offer of a 10 percent finder's fee and demanded 40 percent of the small fortune.

Kitts asserts he found lost money, and court rulings in Ohio establish that a "finders keepers" law applies if there's no reason to believe any owner will reappear to claim it.

I don't know enough about Ohio law to comment on that last sentence.  The prior cases that Kitts referenced may not have presented facts like this one, where the finder was on the property as an agent of the property owner.  Finding cases are all over the place in their results, but this one reminds me of the case involving two workers who found gold on Jann Wenner's property; the judge awarded the gold to Wenner in part because the workers were on the property to act on Wenner's behalf.  These issues are discussed in notes 3 and 4 on p. 106 of the sixth edition of Dukeminier & Krier.

Ben Barros

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January 15, 2008 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Heller and Hills on Land Assembly

Michael Heller (Columbia) and Rodercik Hills (NYU) have posted The Art of Land Assembly on SSRN. Here's the abstract:

Eminent domain for economic development is attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. In this Article, we propose the creation of Land Assembly Districts or "LADs." This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful re-design of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: Where the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let's try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Ben Barros

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January 15, 2008 in Real Estate Transactions, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Salkin and Lavine on RLUIPA

Patricia Salkin and Amy Lavine (Albany Law School) have posted The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government on SSRN.  Here's the abstract:

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts.

Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom.

Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack.

Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.

Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

Ben Barros

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January 15, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 14, 2008

Requiring Lenders to Maintain Foreclosed Property

A student sent a long a link to an interesting story in Business Week about an effort in Buffalo to require lenders that have foreclosed on a property to maintain it.  An excerpt:

On Dec. 17 in a windowless Buffalo courtroom, Cindy T. Cooper, a prosecutor for the city, buzzes among a dozen men in suits, cutting deals. "You've got to unboard [the house], go in, and clean it out," she tells one. "If all the repairs are done quickly, I wouldn't ask for any fines." To another, she says, "the gutters weren't done right," and asks to see receipts for the work. It's "Bank Day" in Judge Henry J. Nowak's housing courtroom, more typically a venue where landlords and tenants duke it out over evictions and back rent. Instead, Cooper is asking lawyers for CitiFinancial (C), JPMorgan Chase (JPM), and Countrywide Financial (CFC) to fix problems like peeling paint, broken masonry, and overgrown or trash-filled yards at houses the city says the banks are responsible for maintaining. It may be surprising to find these financial-services giants hauled before this obscure local tribunal. In fact, Cooper and Nowak are at the forefront of a pioneering effort to deal with a vexing problem: the surging number of vacant and abandoned homes resulting from the mortgage market meltdown. The vacancies occur when lenders bring foreclosure suits against delinquent borrowers. Mere notice that such an action might be filed often sends residents packing. In Buffalo and other Rust Belt cities, the problem has been particularly acute, because in many cases banks are abandoning the houses, too, after determining that their value is so low that it's not worth laying claim to them. When city officials try to hold someone responsible for dilapidated properties, they often find the homeowner and bank pointing fingers at each other. Indeed, the houses fall into a kind of legal limbo that Cleveland housing attorney Kermit J. Lind calls "toxic title". While formal ownership remains with a borrower who has fled, the bank retains its lien on the property. That opens up a dispute over who is responsible for taxes and maintenance. Even when lenders do complete the foreclosure, they may walk away from the property, leaving it to be taken by a city for unpaid taxes, a process that can take years. Orphaned properties quickly fall into disrepair, the deterioration sometimes hastened by vandals who trash the interiors, lighting fires and ripping out wiring and pipes to sell for scrap. Squatters or drug dealers may move in. . . .

In Buffalo, prosecutor Cooper is bringing lenders before Judge Nowak to hold them accountable. Wielding the threat of liens, which can hold up the lenders' other real estate transactions, she aims to make banks keep foreclosed homes in good condition until a buyer can be found. As an alternative, Cooper or Nowak may try to get lenders to donate properties to community groups or to pay for demolition when houses are beyond repair. "At least in Buffalo," says Cooper, "the days are gone when you can do a foreclosure and walk away without taking care of the property." . . .

The industry denies responsibility for properties to which it has not taken title. "The notion that a mortgage company has an obligation to make repairs on a property that it doesn't even own is very hard to comprehend," says Marco Cercone, a Buffalo attorney who represents a range of lenders before Nowak in the courtroom. . . .

In 2004, New York State amended the definition of "owner" in its property maintenance code to include not just titleholders but others who had "control" over a premises.

While the statute makes no reference to lenders, Nowak contends that the letters banks send to defaulting homeowners threatening to boot them from their houses show that they have begun to "assert some measure of control." On this premise, Nowak says, Buffalo began contacting banks "en masse" about foreclosed properties, but "a lot of times we'd just be rebuffed and ignored."

Ben Barros

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January 14, 2008 in Real Estate Transactions | Permalink | Comments (1) | TrackBack (0)

Immigration Law Enforcement vs. Private Property Rights

I've posted before on the intersection between immigration law and property law.  It is an important yet overlooked relationship that has interested me for some time and one that I have been focusing on as of late.   

The New York Times recently ran an interesting story that further explored this convergence.  In particular, several homeowners have protested the federal government's proposal to build a fence at the border between the U.S. and Mexico.  Some have complained that the fence would separate parts of their land, cut off their access to the Rio Grande for livestock and crops and take away access to water. Others have refused to allow the federal government from conducting surveys of their land (because they won't get compensated) while there are those who worry that their properties, which will only be partly fenced, would provide new access to migrants who want to violate immigration law.

Here's the link to the full story.

Regardless of where one stands on the building of this new fence (or "the wall" to many South Texans) in particular or heightened immigration law enforcement more generally, there is no doubt that immigration law enforcement has raised complicated questions and issues that concern property rights.

One troubling effect of the broad authority of immigration law enforcement, as also reported by the New York Times, is the federal government's power to go to a person's home without a warrant. Click here for the story.

Rose Cuison Villazor

January 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Monumental Silence in Spain

Tomb_of_francisco_franco Continuing with our occasional theme of monument law (and thanks to a pointer from Carl Christensen), here's a New York Times story on Spain's recent actions regarding monuments to Franco and the Spanish Civil War.  The article begins:

Last month Spain passed a law that doesn’t make much sense, on its face, but says quite a lot about Europe in the new century.

The Parliament, fulfilling a campaign promise from 2004 by Prime Minister José Luis Rodríguez Zapatero, ordered that families wanting to unearth bodies of relatives killed during the Spanish Civil War of the late 1930s or who suffered as a political consequence of General Francisco Franco’s four-decade-long regime should get full cooperation from the state, and at the same time that every province in the country must remove remaining monuments to Franco.

The public domain image is of the Valle de los Caídos (the Valley of the Fallen), which Franco ordered built as a monument to those who died in the Civil War.  As the Times article describes the monument, "During the 1950s thousands of prison laborers tunneled hundreds of yards into a solid granite mountain ridge to build one of the world’s biggest and most lugubrious basilicas and a Civil War memorial, beneath a cross nearly 50 stories high."  It is considered to be mostly a monument to the Nationalists; however, some Republicans are buried in the valley.  It is from our friends as wikipedia.

Al Brophy
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January 14, 2008 | Permalink | Comments (0) | TrackBack (0)